Anindita Mukherjee

| @ | June 6,2019

[dropcap]T[/dropcap]HE only housing discrimination story to ever make me laugh is that of a realtor in Telangana who cheated over 1000 Brahmins of over INR 25 crore, promising to develop an “exclusive Brahmin housing colony” on the outskirts of Hyderabad, before getting caught in 2015, leaving us with an unexpected metaphor for the perils of uncritical caste-pride. In Bengaluru, however, the project to build a Vedic Agraharam (historically, a grant of land for religious purposes, primarily to Brahmins) is underway in earnest. Its website now sports a defensive disclaimer that the developers are working to bring the project in line with the Karnataka Real Estate (Regulation and Development) Rules, 2017; though how they intend to comply with the non-discrimination requirement of the Rules while promising “emancipation of the living conditions of the Brahmin community” is left to one’s imagination.

I begin with these modern-day agraharas because they are symbolic of the housing discrimination problem in India: that spatial segregation is integral to a caste-ridden society’s settlements, deeply rooted in culture, and fondly remembered when feared lost. It is easy to deride such housing settlements, that proudly proclaim their exclusionary character, but ask an insider to a city/town/village and they’ll be able to point you to the areas where the brahmins stay, the velivada or the dalit bastis, and so on, where exclusions may not be expressly declared, but are encoded in practice, collective memory and language (for example, agraharas that have been absorbed into cities but retain their names, like Konena Agrahara in Bengaluru). The struggle against housing discrimination, therefore, is not merely one against private prejudice, as it is often framed, but a broader struggle for spatial justice.

By this I mean that a nuanced conversation about housing discrimination needs to acknowledge that spaces are constructed and are not experienced absent a social context. The construction of spaces can either reinforce existing injustices and inequities or contest them. The fight, therefore, is to construct spaces of dignity for all.

The single person who feels morally policed in their rented accommodation in a housing society must also interrogate why the same housing society likely polices the bodies of domestic workers differently, scanning bags, mandating the use of separate entries/elevators (when present), placing society-wide limits on income, etc.

 

 

 

The (increasingly urban) housing discrimination conversation, essentially one of insiders and outsiders, must also speak to its rural counterpart—the physical segregation of different caste-groups within the village—as well as the forms this adopts as it transitions into urban spaces. It must think about rural dispossession, about the ways in which spaces respond to migrants of different identities, about monopolistic land-holdings and questions of redistribution.

The recognition that this is all interlinked is not to render the problem so vast as to be impossible to tackle, but to place it within a context that pushes us to interrogate our own complicity in the structures that produce discrimination, as well as to reckon with both the possibilities and the limitations of the law in engaging with these structures.

 

State-sponsored segregation and discrimination

 

Housing discrimination is known to be a tricky subject because it requires the state to mediate between non-state actors, against whom, traditionally, rights claims are not brought. This is only partially true. For substantial portions of the population, discrimination and segregation are state-sponsored activities.

The categories of Economically Weaker Section, Low-Income Group, Middle-Income Group, High-Income Group in determining housing benefits often lead to spatial segregation in how houses are built or land allotted. Similarly schemes to allot land to Dalit families usually create Dalit-only localities, and this is compounded by the fact that land assignment to Dalit households most often places a bar on alienation, therefore locking in the segregation unless an extra-legal land market forms in the locality.

Almost all housing related policies in the country work at the level of the ‘family’ (defined in the most recent Pradhan Mantri Awas Yojana as comprising ‘husband, wife, unmarried sons and/or unmarried daughters’), which invariably excludes those who do not fit that category, whether it is same-sex couples or individuals seeking to escape their families. As for sex-workers, the law practically legislates housing discrimination!

 

 

 

The discriminatory nature of state actions in relation to housing is most starkly visible in processes of de-housing. Whether through the rhetoric of illegality, or even more perniciously, through the language of ‘rehabilitation’, residents of informal settlements are routinely displaced, while one has rarely heard of luxury lake-view apartments sitting on environmentally sensitive poramboke land being razed and relocated to the outskirts of a city. Those tend to be, as Bhan points out, ‘regularised’ and rendered legal. The cyclical and classist nature of this displacement was described by Engels in 1872, and remains, unfortunately, equally true in 2019:

“[T]he practice that has now become general of making breaches in the working class quarters of our big towns, and particularly in areas which are centrally situated, quite apart from whether this is done from considerations of public health or for beautifying the town, or owing to the demand for big centrally situated business premises, or, owing to traffic requirements, such as the laying down of railways, streets (which sometimes seem to have the aim of making barricade fighting more difficult) . . . No matter how different the reasons may be, the result is always the same; the scandalous alleys disappear to the accompaniment of lavish self-praise by the bourgeoisie on account of this tremendous success, but they appear again immediately somewhere else.”

Since all of this is unquestionably state action, it is up for challenge, should the occasion present itself, though most of the concerns discussed so far are rarely discussed in discrimination terms in law. That said, housing law, constructed as it is from a vast array of central, state and local statutes, regulations and orders, offers room for more creative engagement with constitutionalism. The fact that non-state actors are often involved gives us an additional incentive to think through ways in which principles of constitutional law can be woven into the functioning of the everyday state.

 

Towards an everyday Constitution

 

Any discussion of housing discrimination in India is left incomplete without some agonising about the decision of the Supreme Court in Zoroastrian Co-operative Housing Society and Another v District Registrar Co-operative Societies (Urban) and Others. The case is (in)famous for upholding a restrictive covenant barring members of the Society from alienating property to a person outside the Parsi community.

There are many ways in which the judgement is problematic, even if the final decision may not be. For one, it consists largely of assertions masquerading as legal reasoning, and never fully manages to explain why the state should be required to enforce a restrictive covenant, even if it cannot intervene in its creation. The court also did not engage with the possibility of viewing the act of registering a society as state action that needs to be constitutionally valid. My grouse with the judgement is on another of its missed opportunities, though: the statute under which the Co-operative Housing Society was registered had a proviso that allowed the registering authority to refuse to register a society, should its bye-laws be against public policy.

The High Court decision had noted this fact and held that bye-laws denying membership on grounds of religion would be in violation of the public policy exception. The Supreme Court, however, against its own decisions, held that public policy must discerned from within the four corners of the statute: a particularly incomprehensible decision since the clause on public policy exists as an exception, and must therefore obviously be interpreted based on sources outside the statute. It was possible for the Court to have arrived at its final decision upholding the bye-laws, on the basis of the rights of minorities, without taking the problematic line it did in relation to state action as well as public policy.

 

 

 

In failing to think carefully about what a public policy restriction on registering societies could mean, the Court missed the opportunity to infuse an everyday state act with constitutional values. Doing so would have given persons in a transaction with a non-state actor one avenue to seek redress on the (indirect) grounds that their fundamental rights have been violated.

There are two (non-mutually exclusive) ways to think about the horizontality of rights. The dominant conversation is one of direct horizontality, the possibilities of Article 15(2) and the need for a comprehensive legislation against discrimination. In the context of housing, amendments to the Constitution articulating a right to shelter/housing have been mooted.

While I have nothing against that particular line of thinking and political action, I do think that the real challenge lies in getting constitutional principles to animate the functioning of the state that the average person comes in contact with: the administrative officer, the registering authority, the panchayat. One possible route towards achieving this end is to pay closer attention to indirect horizontality, or the ways in which fundamental rights can come to vest in statutory rights that provide for more accessible modes of redressal.

 

 

 

The idea that private transactions between non-state actors are unregulated in India is a laughable one. The Indian Contract Act holds contracts against public policy to be void. In most states, statutes relating to the registration of societies also have a public policy exception. The Rules adopted by most states under the Real Estate (Regulation and Development) Act, 2016 require developers to sign an undertaking that they will not discriminate. Apartment blocks require registered Apartment Owners Associations, where a clause against discrimination in renting practices could be made mandatory for registration to be permitted. Most planning statutes in the country mandate public consultation, even if the requirement is routinely breached. The spaces for contestation are many, even if they are not the usual sites for building constitutional jurisprudence.

The upside of this kind of ground-up building of constitutional values into statutes and subordinate legislation is that it permits local resolutions that speak to the specific context and history of the place in question. It allows for political action at accessible levels of government. The rich possibilities of using executive action to facilitate non-discrimination are illustrated in the Tamil Nadu government programme, launched in 1997 in response to violent caste-based clashes, ‘Periyar Ninaivu Samathuvapuram’ (Periyar Memorial Equality Village) that sought to construct hundred villages without spatial caste segregation, and with common community halls and burial grounds: an effort to reimagine space in ways that made use of the knowledge of local traditions to invert their exclusions.

 

Acknowledging the limits of legal intervention

 

The problem of housing discrimination is one that is mired in a range of oppressive practices. It involves exclusions based on religion, caste, class, gender, sexual orientation, marital status, culinary preferences, pet-ownership. Each of these rationales for exclusion is deeply rooted and routinely articulated in more sophisticated terms in order to remain palatable. ‘Security’, ‘luxury’, ‘privacy’ become euphemisms for exclusion simpliciter. The interests vested in keeping status quo going are powerful, since any effort at reimagining spaces in more just ways, would necessarily involve a redistributive element. A struggle against housing discrimination is essentially a struggle to wrest the power to exclude from the hands of those who hold it. Such an effort requires sustained political mobilisation and the building of solidarities across excluded communities.

 

 

 

The ability of the law to alter this status quo is suspect, especially since it is structurally predisposed to bend in the service of the powerful. It can, however, if read closely and interpreted imaginatively, be used to put discriminating actors on the defensive and force them to justify their actions. And, it is said, that the ability to demand justification, is the first step towards justice.

 

 

[Anindita Mukherjee is a Research Fellow at NALSAR University of Law, Hyderabad and the author of The Legal Right to Housing in India (Cambridge University Press, 2019).]

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